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Open Access and Academic Freedom

The movement to make scholarly work more accessible has created major benefits, but mandating open access -- and Creative Commons licensing -- restricts authors’ ability to say how, where and by whom their work will be reused, writes Rick Anderson.

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As they have gained momentum over the past decade, the open access (OA) movement and its cousin, the Creative Commons licensing platform, have together done a tremendous amount of good in the world of scholarship and education, by making high-quality, peer-reviewed publications widely available both for reading and for reuse.

But they have also raised some uncomfortable issues, most notably related to academic freedom, particularly when OA is made a requirement rather than an option and when the Creative Commons attribution license (CC BY) is treated as an essential component of OA.

In recent years, major American and European funding bodies such as the National Institutes of Health, the Wellcome Trust, the Gates Foundation, the Ford Foundation, and Research Councils UK have all instituted OA mandates of various types, requiring those whose research depends on their funding to make the resulting articles available on some kind of OA basis. A large number of institutions of higher education have adopted OA policies as well, though most of these (especially in the United States) only encourage their faculty to make their work openly accessible rather than requiring them to do so.

At the same time, Creative Commons licensing has emerged as a convenient way for authors to make their work not only publicly readable, but also reusable under far more liberal terms than copyright law would otherwise provide. When an author makes her work available under a CC-BY-NC-ND license, for example, this signals that the public is allowed to copy, redistribute, and republish that work for noncommercial purposes, though not to create derivative works without permission.

The most liberal of these is the Creative Commons Attribution license (CC BY), which effectively assigns all of the exclusive prerogatives of the copyright holder to the general public, allowing anyone who so desires to copy, distribute, translate, create derivate works, etc., even for commercial purposes, as long as the author is given credit as creator of the original work.

Along with the great and undeniable benefits offered to the world of scholarship by the emergence of both OA and Creative Commons licensing, these programs and tools (like all programs and tools) also entail costs and unintended consequences, and have raised some uncomfortable issues.

One such issue has to do with academic freedom. More and more publishers, funding agencies and academic institutions have begun not only requiring OA of their authors, but also adopting a definition of OA that requires CC BY licensing. The Public Library of Science (PLoS) which is easily the world's largest and most powerful OA publisher (producing more than 30,000 articles per year), does not permit its authors to use any license except CC BY, nor does BioMed Central.

In late 2014 both the Gates and the Ford Foundations announced that articles published as the result of research they underwrite must be published on an OA basis, to include a CC BY license granted to the public. The Research Councils UK -- which controls about $4.5 billion in research funding in the United Kingdom -- also requires OA/CC-BY whenever its block grants are used to fund article processing charges. Obviously, the more funding agencies and publishing venues require CC BY, the less choice is available to authors who rely on those funds or those venues.

What do authors think of this? When they are asked, the answer seems clear: many of them don't like it. When the publisher Taylor & Francis surveyed its authors in 2014 and asked them to give their opinions on a variety of licensing options, three times more respondents rated CC BY “least preferred” than rated it “most preferred” or “second preferred,” combined. When Nature left it to authors to choose a license for their OA work, 74 percent of them selected licenses more restrictive than CC BY. (Since making CC BY the default license earlier this year, however, Nature has found that authors leave the CC BY license in place 96 percent of the time.) Authors who have published under CC BY licenses have, in a couple of recently documented cases, been dismayed to find their work being repackaged and sold by commercial publishers with whom they would not have chosen to associate.

The issue in such cases is not a loss of revenue, which the authors surely never expected to realize in the first place, but rather being forced into a publishing relationship not of their choosing -- as well, in some cases, as an objection to the commercial reappropriation of their work in principle. In some disciplines, particularly in the humanities, authors worry about translations of their work appearing under their names (in accordance with CC BY's attribution requirements) but without their vetting and approval. Sometimes authors who are anxious to see their work made as freely available to readers as possible balk at granting the world carte blanche to repurpose, alter, or resell their work without permission.

Those who advocate for OA with CC BY argue that there is no reason for authors to object to it: scholars and scientists (the argument goes) have already been paid for the work they're writing up, and since they have little if any expectation that their writings will generate additional revenue for them, why not make their work freely available to those who may be able to find ways to add value to them through reuse and “remixing,” and maybe even to profit from doing so? In any case (the argument continues), authors retain their copyright under a CC license, so what's the problem?

The problem, for many authors, is that their copyright becomes effectively meaningless when they have given away all of the prerogatives over their work that copyright provides. The right to make copies, to publish, to create derivative works, etc., are not the meaningful rights that the law gives to copyright holders -- after all, these are rights that the general public has in relation to works in the public domain. The meaningful right that the law provides the copyright holder is the exclusive (though limited) right to say how, whether, and by whom these things may be done with his work by others.

So the question is not whether I can, for example, republish or sell copies of my work under CC BY -- of course I can. The question is whether I have any say in whether someone else republishes or sells copies of my work -- and under CC BY, I don't.

This is where it becomes clear that requiring authors to adopt CC BY has a bearing on academic freedom, if we assume that academic freedom includes the right to have some say as to how, where, whether, and by whom one's work is published. This right is precisely what is lost under CC BY. To respond to the question "should authors be compelled to choose CC BY?" with the answer "authors have nothing to fear from CC BY" or "authors benefit from CC BY" is to avoid answering it. The question is not about whether CC BY does good things; the question is whether authors ought to have the right to choose something other than CC BY.

In other words, the issue here that has a bearing on academic freedom is the issue of coercion. CC licenses that are freely chosen by authors are one thing, but when those licenses are imposed on authors by those who have power over their careers, we begin talking about a different set of issues. Such coercion exists on a spectrum, of course: when a powerful publisher says "We won't accept your work, regardless of its quality, unless you adopt CC BY," that represents one kind of coercion; when a funder says "We won't fund your research unless you promise to make the published results available under a CC BY license," that's a somewhat different kind. Both have emerged relatively recently.

To say that authors ought to be able to choose for themselves whether or not to adopt CC BY is not to oppose CC BY or to deny the very real benefits it offers. It is, rather, to suggest that retaining some say in how one's work may be reused is an important aspect of academic freedom, and that academic feedom matters. And one might go a step further and suggest that by refusing to fund a research proposal on the basis of its author's publishing plans (rather than on the proposal's intrinsic merits), or by refusing to publish an article based on its author's unwillingness to adopt CC BY (rather than on the article's intrinsic merits) we do a potentially serious disservice to the advancement of science and scholarship.

Openness and reuse certainly do contribute importantly, even crucially, to the advancement of knowledge -- but they are not the only things that do, and when authors are denied funding or excluded from important publishing venues based not on the quality or significance of their work but rather on their willingness to comply with a particular model of dissemination and reuse, we introduce distortions into the system that have the potential to do damage even as they attempt to do good.

Perhaps those in the OA community who are confident in the attractiveness of CC BY, and in its lack of real costs and downsides to authors, should demonstrate that confidence by endorsing policies and programs that allow authors to choose for themselves. Educate them as to the issues, certainly; make the strongest possible case in favor of CC BY, absolutely. But then stand back and let authors decide for themselves whether or not they agree.

Arguments backed up by coercion are always suspect; if they are as strong as those making them seem to believe, then coercion should not be necessary. Where coercion is shown to be necessary for widespread adoption, then perhaps that suggests the need for a more rigorous examination of costs and benefits.

Bio

Rick Anderson is associate dean for collections and scholarly communication at the University of Utah's J. Willard Marriott Library.